Why Pornography is Not Prostitution: Folk Theories of Sexuality in the Law of Vice

Abstract

This Article dissects an anomaly in the law regarding pornography and prostitution: under that law, people who have sex with other people for money are normally guilty of prostitution, but not when they are acting in pornography. Since the prostitute and the pornographic actor both engage in the same physical activities and both do so for money, it is natural to wonder why the prostitute is guilty of a crime, but the pornographic actor (normally) is not.

In recent years, commentators and courts have offered a jumbled potpourri of rationales and justifications for this anomaly, most of which are either analytically inadequate or implausible in light of present social attitudes. Skeptical that there is a plausible justification for this anomaly, this Article instead offers an explanation – an account that helps us understand why the law makes this anomalous distinction between prostitution and pornographic acting even if the distinction cannot be justified.

The explanation points to folk theories about sex – unrefined stories and narratives about sex that persist in and pervade our popular culture. On this folk-theory explanation, the divergence at issue springs from the interplay between a cultural commitment to sating ostensibly voracious male sexual desire and a cultural anxiety about the ways that direct sexual involvement with the female may corrupt or contaminate the male, not just physically, but morally and socially. From the perspective of these folk theories, prostitution and pornography both have the virtue that they sate male desire, but prostitution, involving direct sexual involvement with the female, threatens to taint or corrupt the male consumer (physically, morally, and socially) in a way that pornography does not. Pornography, then, strikes a more “favorable” balance between sating male desire and protecting men from potential corruption than prostitution does. As a result, it is privileged over prostitution in the law.

Of course, this cultural mythology about sex does not supply a defensible justification for the state of the law. On the contrary, these folk theories seem almost childishly superstitious, and they resonate with atavistic and ugly ideologies about gender and sex. Nevertheless, this folk-theory account should help explain why the criminalization of prostitution persists so stubbornly today, despite the increasingly pervasive acceptance of feminist, libertarian, and sex-positive insights that might lead to decriminalization, and why the law treats prostitution differently than it treats pornographic acting. In this sense, the explanation offered here does not so much harmonize the law as diagnose in it a persisting pathology. Diagnosing this pathology in the law of prostitution and pornography should, in turn, cast new light on broader issues in the law of vice.

Kaye, Anders, Why Pornography is Not Prostitution: Folk Theories of Sexuality in the Law of Vice (April 28, 2017). 60 St. Louis Law Journal 243 (2016). Available at SSRN: https://ssrn.com/abstract=2959972